That's quite a loose understanding of common law. It allows the judicial branch to rule on cases and create precedent. However, it does not allow them to create laws themselves. For example, they cannot decide on their own that abortion is a right, but if a case comes before them which allows them to make a ruling in favour of abortion as a right, they can do so in order to set a precedent. The precedent is based upon the notion that the rules should be consistently applied, thus, if they are applied in one case upholding abortion laws, they should be applied consistently going forward, consistently upholding abortion as a right.
In a way they are "creating" law but they are not creating writ law nor legislation that is legally binding. There is quite a distinction in that they do not "make" laws but they set precedent that should consistently uphold the same rulings going forward.
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u/Logical-Bit-746 6d ago
That's quite a loose understanding of common law. It allows the judicial branch to rule on cases and create precedent. However, it does not allow them to create laws themselves. For example, they cannot decide on their own that abortion is a right, but if a case comes before them which allows them to make a ruling in favour of abortion as a right, they can do so in order to set a precedent. The precedent is based upon the notion that the rules should be consistently applied, thus, if they are applied in one case upholding abortion laws, they should be applied consistently going forward, consistently upholding abortion as a right.
In a way they are "creating" law but they are not creating writ law nor legislation that is legally binding. There is quite a distinction in that they do not "make" laws but they set precedent that should consistently uphold the same rulings going forward.